Grullon v. City of New York

• Decision Date: 12 December 1995
• Citation: 222 A.D.2d 257,635 N.Y.S.2d 24
• Court: New York Supreme Court — Appellate Division
• Parties: Rafael GRULLON, et al., Petitioners-Appellants, v. The CITY OF NEW YORK, et al., Respondents-Respondents.

Page 24

635 N.Y.S.2d 24

222 A.D.2d 257

Rafael GRULLON, et al., Petitioners-Appellants, v. The CITY OF NEW YORK, et al., Respondents-Respondents.

Supreme Court, Appellate Division First Department.

Dec. 12, 1995.

M.M. Basichas, for petitioners-appellants.

A. Beckoff, for respondents-respondents.

Before MURPHY, P.J., and SULLIVAN, ROSS, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Salvador Collazo, J.), entered October 31, 1994, denying petitioners' application to file a late notice of claim, unanimously modified, on the law and the facts and in the exercise of discretion, to grant the application to file a late notice of claim as to the claims for malicious prosecution, false arrest and false imprisonment, and, except as thus modified, affirmed, without costs or disbursements.

In November 1991, petitioner Rafael Grullon was arrested and charged with two counts of murder in the second degree and related offenses in connection with the killing of an individual during the commission of a robbery. Petitioner was released on bail on or about December 9, 1993 and, on June 2, 1994, the indictment was dismissed. On July 28, 1994, petitioner's then attorney filed a notice of claim on behalf of petitioner against the City for false arrest, false imprisonment, malicious prosecution and civil rights violations, as well as on behalf of his wife for her derivative claims. Thereafter, petitioners retained present counsel, who advised that the notice of claim was untimely, and moved for permission to file a late notice of claim. Attached to the moving papers was an amended notice of claim which asserted claims for false arrest, false imprisonment, malicious prosecution, assault and battery and negligence. The IAS court denied the motion, adopting the City's argument that the notice of claim had to be filed no later than 90 days after petitioner's release from custody and that late notice relief was unwarranted in the absence of a cognizable excuse justifying the delay in serving the notice of claim.

At the outset, it is noted that the City concedes that the claim for malicious prosecution is timely, since such a cause of action accrues on the date the charges are dismissed. (See, Ragland v. New York City Housing Authority, 201 A.D.2d 7, 9, 613 N.Y.S.2d 937.) As to the causes of action for false arrest and false imprisonment, under the circumstances of this case, where the police department conducted an extensive...